The State v Kholwani Donga

On 9 February 2021 at approximately 01:30 am, accused Kholwani Donga set fire to a house where seven people were sleeping at his grandfather Robert Donga's homestead. The fire was started using an accelerant (petrol). Robert Donga (deceased 1) died from fatal burns. Praymore Khumalo (deceased 2), a herd-boy, died from burns and Covid-19 infection. Five other occupants survived: Angel Mpala, Ayanda Donga, Buhle Hadebe, Bandile Donga, and Andile Hadebe. Ayanda Donga testified she saw the accused at the scene approximately two metres away, clearly identified him by solar lights and firelight, called out his name, and saw him flee. There was a long-standing family feud concerning land allocation and accusations that deceased 1 favored his stepson and caused the death of accused's father. Police found freshly washed clothes matching the description given by Ayanda Donga at accused's home. Accused was arrested at a roadblock along the Bulawayo-Victoria Falls road. Forensic evidence confirmed the fire was wilfully and intentionally caused using an accelerant. Accused pleaded not guilty, claiming he was asleep at his mother's house the entire night.

• Whether the State proved beyond reasonable doubt that the accused set fire to the house
• Whether the identification evidence of Ayanda Donga was reliable and credible
• Whether the accused's alibi defence was credible
• Whether the accused had the requisite intention for murder with actual intent in Count 1
• Whether the accused's conduct caused the death of deceased 2 in Count 2, given the post-mortem report listed both burns and Covid-19 as causes of death
• Whether the accused had intention to kill the five survivors (attempted murder charges in Counts 3-7)

Count 1: Guilty of murder with actual intent - sentenced to 25 years imprisonment. Count 2: Not guilty of murder; guilty of attempted murder - sentenced to 10 years imprisonment. Counts 3, 4, 5, 6, 7: Guilty of attempted murder - each sentenced to 10 years imprisonment. Sentences in Counts 2-7 to run concurrently with each other and with Count 1. Effective sentence: 25 years imprisonment.

Single witness identification evidence can sustain a conviction for murder if the witness is credible and the identification is reliable based on factors including: prior knowledge of the accused, lighting conditions, proximity, opportunity for observation, and immediate consistent reporting. An accused who uses an accelerant to set fire to an occupied dwelling at night when occupants are likely asleep demonstrates actual intent to kill under section 47(1)(a) of the Criminal Law (Codification and Reform) Act, either by desiring death or by foreseeing death as substantially certain. Where a post-mortem report lists multiple causes of death without clearly establishing which was the fatal cause, the State fails to prove beyond reasonable doubt that the accused's conduct caused death, warranting conviction for the lesser included offense of attempted murder rather than murder.

The court observed that while it has power under section 280 of the Criminal Procedure and Evidence Act to summon a doctor who prepared a post-mortem report to give oral evidence, this power should only be exercised when the affidavit is inadequate, contains scanty or contradictory information, or when necessary for a just decision. In this case, the court decided against calling the doctor because the report, though not conclusive about causation, contained sufficient information and calling the doctor would not be essential to the just decision of the case. The court also noted it is a notorious fact that Covid-19 kills and has caused 6.04 million deaths worldwide (as of the time of judgment). The court commented that the 27-year-old accused's youth warranted leaving him an opportunity to rejoin society rather than imposing life imprisonment, despite the serious nature of the offenses involving "mindless brutality" and "horrible" treatment of human beings.

This case demonstrates the Zimbabwean High Court's approach to identification evidence by a single witness in serious criminal cases, applying the principles from S v Mthetwa regarding factors to consider in assessing reliability of identification evidence. It illustrates the courts' treatment of arson cases resulting in death and the requisite intent for murder with actual intent. The case also demonstrates judicial discretion in evaluating post-mortem reports and determining causation in murder cases where multiple potential causes of death exist. The case emphasizes that courts will impose severe sentences for premeditated attacks on vulnerable victims (sleeping persons) using dangerous means (accelerants), while still considering the accused's age and potential for rehabilitation.